Monday, June 9, 2008

More Words Mean Less -- Ava Acupuncture v. State Farm Redux

I don't know why I opened and perused a case involving competitive local exchange carriers (businesses that purchase telephone service from major carriers and resell it to end users) this morning, but maybe it was to find this:

Plaintiff's Amended Verified Complaint consumes one hundred fifty-five (155) pages to allege twenty-seven (27) causes of action in three hundred eighty-nine (389) paragraphs. While it flagrantly violates CPLR 3014's mandate that pleadings "shall consist of plain and concise statements," dismissing the complaint sua sponte with leave to replead would ultimately work a disservice to defendants, whose counsel have laboriously sifted through the verbiage to dissect and analyze the multitude of arguments and theories, many of which are internally inconsistent and mutually contradictory. It is therefore more appropriate to determine whether there are sufficient facts pleaded which give rise to one or more causes of action and then to determine whether any such cause of action is subject to dismissal on any of the grounds raised by defendants.

* * * * *

In response to defendants' motion to dismiss the amended complaint, plaintiff has cross-moved for permission to amend his pleadings yet again. His proposed second amended complaint is forty-one (41) pages longer than his first amended complaint, and it contains ninety-nine (99) additional numbered paragraphs. Plaintiff does not suggest the reasons for which he is seeking to replace one overly burdensome pleading with an even denser tome, nor does a perusal of the one hundred ninety-six (196) page, four hundred eighty-eight (488) paragraph proposed second amended complaint yield anything beyond a heightened appreciation for the Taoist maxim, "More words mean less."

Defendants vehemently oppose the cross-motion. They cite precedent for the proposition that "the court should not be compelled to wade through a mass of verbiage and superfluous matter in order to pick out an allegation here and there, which, pieced together with other statements taken from another part of the complaint, will state a cause of action" (citation omitted). They urge that "[t]he time of the court should not be taken in a prolonged study of a long, tiresome, tedious, prolix, involved and loosely drawn complaint in an effort to save it" (citation omitted).

As noted earlier, CPLR 3014 mandates "plain and concise" pleading. While the first amended complaint flouted this principle, the Court opted against dismissal with leave to replead in order to spare defendants any additional and unnecessary expenditure of time and resources. Inasmuch as the ends of justice would not be served by accepting a proposed second amended complaint that treats CPLR 3014 as mere surplusage, plaintiff's application is without merit. Davis v. Cornerstone Tel. Co., LLC, 2008 NY Slip Op 51141(U) (Sup. Ct., Albany Co., decided 6/5/08).

Sound familiar? The Ava Acupuncture complaint is 225 pages and 789+ paragraphs long. Prolix indeed. See my No-Fault "Bad Faith" Class Action Filed post below.

If you can slough off the name calling and care to review some reactions to this new lawsuit and my postings, check out the comment thread to Bad Faith Class Action over at No-Fault Paradise.


Anonymous said...

Nice work here. Its a breath of fresh air to see some objectivity and common sense on the internet.

Roy A. Mura said...

Thanks, A'non. Trying.